Thrill Seeking Warnings: Exclusion of Liability

The New South Wales Supreme Court of Appeal awarded an appellant $136,075.00 in damages as compensation for injuries suffered in a quad biking activity despite the risk warnings and assistance provided by instructors.

In Alameddine v Glenworth Valley Outdoor Adventures [2015] NSWCA 219 the appellant was injured riding a quad bike at the respondent’s recreational facility. The respondent’s website advertised the activity as “surprisingly easy”; “no experience is necessary; and “All our bikes are fully automatic making them easy to ride and use”.

On the day of the activity, the appellant, along with her mother, siblings and cousins were given a presentation on how to use the bikes by one of the respondent’s instructors. The instructor assessed the participants skill level before leading them along a trail which was “a purpose built quad biking track”.

On the return trip from the track the instructor led the appellant and three other participants back to the centre. During the trip the instructor accelerated at an excessive speed that was beyond the capability of the appellant. In attempting to keep up with him, the appellant lost control of her quad bike causing her injuries.

Civil Liability Act Defences

The Civil Liability Act 2002 (NSW) provides certain protections for recreational activity providers such as:

  • No liability for harm suffered from obvious risks of dangerous recreational activities (section 5L)
  • No duty of care for recreational activity where there is a risk warning (section 5M)
  • Waiver of contractual duty of care for recreational activities (section 5N)

Section 5L

On each account the Court of Appeal found that the Civil Liability Act Defences did not apply in this particular case. Firstly, in finding that section 5L did not apply the Court of Appeal agreed with the primary judge’s findings that quad biking was easy to ride and use and was not in fact a “dangerous recreational activity”. The Court also held that the risk of the injury was not obvious as the instructor was expected to lead the group at a reasonably controlled speed.

Section 5M

Similarly, the Court of Appeal also found that the risk warning protection of section 5M did not apply in this case. The Court held that the risk of the injury was not an inherent part of the biking activity which was anticipated by the appellant and her mother who expected competent supervision from the instructor which he failed to provide.

Section 5N

Recreational activity providers usually present participants with a waiver of contractual duty of care. In this case, the appellant’s sister signed an application form on behalf of the appellant waiving liability for injury caused. The Court held that section 5N did not apply. The Court was of the view that the contract was in fact formed on the previous day when the appellant’s mother, on behalf of the appellant and the rest of the family, arranged the activity and paid the respondents for it. There was no discussion at any time that the application form which contained the waiver would form part of the contract. The Court also noted that exclusion clauses are not usually interpreted to extend to the defendant’s negligence unless the clause specifically refers to that liability.

Australian Consumer Law (ACL)

The Australian Consumer Law also provides certain statutory guarantees for services rendered including recreational activities. Section 60 of the ACL provides a guarantee that services are to be provided with due care and skill. Similarly, section 61 of the ACL provides a guarantee that services rendered will be reasonably fit for that purpose. The Court found that the guarantees of the ACL applied in this case.

This case clearly demonstrates the importance of risk warnings and the timing in which they are presented to the participants. Recreational activity instructors must always have in mind the duty of care that they must provide despite any exclusion of liability clauses signed by participants.

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